Laws called deficient as marijuana smoker cleared of impaired driving

The recent acquittal of a Saskatchewan driver on impaired driving charges — even though she admitted using marijuana before hitting the road and bungled a number of coordination tests — is raising questions about the ability of law enforcement to go after drugged drivers.

Some advocates say that Canada’s drug-impaired driving laws introduced in 2008 are deficient and that federal lawmakers should move to adopt drug-intake thresholds similar to the 0.08 blood-alcohol limit.

The judge in the Saskatchewan driver’s case said police and prosecutors failed to convince him that her use of marijuana actually affected her ability to operate a vehicle.

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Saskatoon police set up a roadside checkpoint on June 19, 2011. An officer approached a vehicle and smelled an overwhelming odour of marijuana.

The driver admitted to the officer that she had smoked marijuana about 2-1/2 hours earlier. The officer, who was a trained drug recognition evaluator, had the driver perform a number of coordination tests. During the walk-and-turn test, the driver missed a number of heel-toe steps and failed to turn, as instructed. During the finger-to-nose test, she was able to touch her nose only once during six attempts.

The officer also noticed eyelid tremors and reddening of the drivers’ eyes.

Following these and other tests, the officer concluded the driver had marijuana in her system, which was later confirmed by a urine analysis.

We need clear, bright line indicators … that are capable of enforcement

But in a court ruling Aug. 21, provincial court Judge Daryl Labach said the evidence presented in court only showed that the accused had used marijuana prior to being stopped and that some of it was still in her system when she was evaluated by police.

“What [the officer’s] evidence does not convince me of is that at the time she was driving, her ability to operate a motor vehicle was impaired by marijuana,” he said.

The judge said he was left with many questions: What signs of impairment would one expect to see in someone who has been using marijuana? How long after using marijuana would you expect to see these signs and how long would they last? Was the accused’s performance in some of the tests just as consistent with someone who has poor balance or poor coordination as it was with someone who had used marijuana?

The lack of answers, and the lack of evidence of erratic driving, raised reasonable doubt the driver was driving impaired, the judge said.

There have been similar acquittals in other jurisdictions. Labach referred to a 2010 case out of Ontario.

A man had hit a mailbox with his car and went off the road. Police observed that the driver had droopy eyes, slow and thick speech, and was unco-ordinated.

A police drug-recognition expert concluded that the driver was likely impaired by a central nervous system depressant, which was later confirmed by a urine analysis.

But Ontario Justice Stephen J. Fuerth acquitted the driver, saying evidence of the driver’s impairment was “far from compelling,” and that the Crown had failed to show beyond a reasonable doubt that the drug had caused the driver to be impaired at the time he was driving.

“The hurdle for the Crown in these cases is to relate back the findings of the evaluation, and the subsequent chemical analysis, to the time of the driving,” the judge said in his decision.

Representatives of Mothers Against Drunk Driving (MADD) said Friday that data on drug-impaired driving convictions in Canada have been difficult to obtain. But they said there is now growing recognition that federal lawmakers need to remove some of the subjectivity contained in Canada’s drug-impaired driving laws by simply adopting “per se” limits for certain common illicit drugs, as there is for alcohol.

“This is the way to go,” said Robert Solomon, a law professor at Western University and MADD’s national director of legal policy. “We need clear, bright line indicators … that are capable of enforcement.”

One challenge, however, is getting experts to agree how much of a certain drug needs to be found in someone’s system to constitute impairment.

Solomon said that “there’s no reason for Canada to reinvent the wheel” as many jurisdictions in the United States, Western Europe and Australia have already adopted such standards.

Asked for comment Friday, a spokesman for Justice Minister Rob Nicholson said: “Our government takes impaired driving very seriously. This is why we increased the penalties for impaired driving while giving police new tools to better investigate drug-impaired driving.”

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